New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

KENNETH L. BONNER v. TENNESSEE DEPARTMENT
OF CORRECTION
Court:TCA
Attorneys:
Kenneth L. Bonner, Mountain City, Tennessee, Pro se.
Paul G. Summers, Attorney General, Michael Moore, Solicitor General,
Pamela S. Lorch, Assistant Attorney General, for the appellee,
Tennessee Department of Correction.
Judge: COTTRELL
First Paragraph:
The petitioner contends that the trial court erred in dismissing his
petition regarding the Department of Correction's calculation of his
release eligibility date. An adjustment of the release eligibility
date, made subsequent to the filing of this appeal, has rendered most
of the petitioner's arguments moot. As to the remaining issue, we
affirm the dismissal of the petition because we agree with the trial
court that it lacked jurisdiction to consider the petition.
http://www.tba.org/tba_files/TCA/bonnerkenneth.wpd
SUZANNE W. GIBSON, ET AL v. JAMES E. PROKELL
Court:TCA
Attorneys:
Scott B. Peatross, Memphis, for Appellant
Felix H. Bean, III, Memphis, for Appellee
Judge: HIGHERS
First Paragraph:
This is the fourth time that an aspect of this domestic dispute has
come before this court. Both parties appeal and raise numerous
issues, primarily involving child support and visitation. For the
reasons set forth herein, we affirm in part, reverse in part, and
remand to the court below for further proceedings consistent with this
opinion.
http://www.tba.org/tba_files/TCA/gibsonsuzanne.wpd
FARMER CONCURRING
http://www.tba.org/tba_files/TCA/gibsonsuzannecon.wpd
JOE LOUIS GRANT v. SERVICE TRANSPORT, INC.
Court:TCA
Attorneys:
Garrett M. Estep, Memphis, for Appellant, Service Transport, Inc.
No Brief filed for Appellee
Judge: HIGHERS
First Paragraph:
This appeal arises from a negligence claim filed by the Appellee
against the Appellant in the Circuit Court of Shelby County. The
Appellant filed a motion for summary judgment or, in the alternative,
to dismiss for failure to state a claim. The trial court denied the
Appellant's motion. The Appellant filed a motion for permission to
file an interlocutory appeal. The Appellee filed an order of
voluntary dismissal before the Appellant's motion for permission to
file an interlocutory appeal could be heard.
The Appellant appeals, arguing that the order of voluntary dismissal
deprived it of the right to seek appellate review of the trial court's
denial of its motion for summary judgment or, in the alternative, to
dismiss for failure to state a claim. For the reasons stated herein,
we affirm the trial court's decision.
http://www.tba.org/tba_files/TCA/grantjoelouis.wpd
MR. & MRS. WOO-JUN KI, Individually and as parents and next of kin of
JONG-DO KI, Deceased v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Paul G. Summers, Attorney General & Reporter, Michael E. Moore,
Solicitor General, Kimberly J. Dean, Deputy Attorney General,
Nashville, for Appellant
William D. Leader, Jr., Barbara Hawley Smith, Nashville, for Appellees
Judge: HIGHERS
First Paragraph:
This appeal arises from a tragic fire on the campus of the University
of Tennessee at Martin, in which Jong-Do Ki lost his life. Jong-Do
Ki's parents, Mr. and Mrs. Woo-Jun Ki, filed suit against the state of
Tennessee. The Claims Commissioner found that the State was negligent
in that it failed to provide the minimum fire safety requirements
mandated by the fire codes it had adopted. The Claims Commissioner
also found that the Kis were entitled to recover damages for the
wrongful death of their son pursuant to section 20-5-113 of the
Tennessee Code. Additionally, the Claims Commissioner found that the
Kis were entitled to recover the damages they suffered as a result of
Jong-Do Ki's death - the pecuniary value of Jong-Do Ki's life.
Because we hold that Jong-Do Ki is the only claimant in this case
under section 9-8-307(e) of the Tennessee Code, we reverse in part,
and we remand to the Claims Commission for further proceedings
consistent with this opinion.
http://www.tba.org/tba_files/TCA/kiwoojun.wpd
PARKS PROPERTIES, et al. v. MAURY COUNTY, et al.
Court:TCA
Attorneys:
George Dean, Nashville, Tennessee, for the appellants, Maury County
and Judy Langsdon.
Robert Holloway, Jr., Columbia, Tennessee, for the appellees, Parks
Properties and Columbia Warehouses, Inc.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between Maury County and the developers
of a commercial warehouse project. The developers purchased two large
metal warehouses based on their understanding that the Director of
Community Development and the Maury County Regional Planning
Commission had effectively agreed to waive the Southern Standard
Building Code's requirement that buildings have automatic sprinkler
systems. After the Director of Community Development declined to
issue a building permit because the plans did not include a sprinkler
system, the developers filed suit in the Circuit Court for Maury
County seeking to compel the county to issue a building permit and to
recover damages under 42 U.S.C. S 1983 (1994). Following a bench
trial, the trial court concluded that Maury County and its Director of
Community Development had violated the developers' substantive due
process rights and awarded them $445,152.55 in damages and $2,772.80
in discretionary costs. On this appeal, Maury County and its Director
of Community Development assert that the trial court erred by
concluding (1) that they had violated the developers' substantive due
process rights, (2) that the director was not entitled to qualified
immunity, and (3) that their actions proximately caused the
developers' claimed damages. We have determined that the trial court
erred as a matter of law when it concluded that Maury County and its
Director of Community Development violated the developers' property
interests protectable by substantive due process. Accordingly, we
reverse the judgment and remand the case to the trial court with
directions that it be dismissed.
http://www.tba.org/tba_files/TCA/parksproperties.wpd
LINDA G. POPER, by Husband and Conservator, THOMAS C. POPER, et al. v.
JOSEPH E. ROLLINS, et al.
Court:TCA
Attorneys:
Berry Cooper, Memphis, Tennessee, for the appellant, Thomas C. Poper.
Nathan W. Kellum, Memphis, Tennessee, for the appellee, Farmers Mutual
Insurance Exchange.
Melanie M. Stewart, Memphis, Tennessee, for the appellee, Joseph E.
Rollins.
Judge: LILLARD
First Paragraph:
This is an uninsured motorist insurance case. The plaintiff's wife
died as a result of injuries suffered in an automobile accident
involving multiple vehicles. The husband sued several defendants for
wrongful death. He settled out of court with all but one defendant.
The single remaining defendant had only $10,000 in liability insurance
coverage. The insurance company of the remaining defendant offered to
settle for the full policy limit. The husband had an uninsured
motorist insurance policy with $100,000 in coverage, and he sued his
uninsured motorist insurance carrier for damages beyond the policy
limits of the remaining defendant's insurance. The uninsured motorist
insurance carrier refused, asserting that the husband had collected
more than the $100,000 uninsured motorist policy limit from the other
defendants who had settled with the husband previously. The trial
court granted summary judgment to the insurer. On appeal, we affirm,
finding that, under Tennessee Code Annotated S 56-7-1201(d), the
uninsured motorist insurance carrier is entitled to offset the amounts
collected from the defendants who had previously settled.
http://www.tba.org/tba_files/TCA/poperlg.wpd
DUNCAN E. RAGSDALE, et ux. v. THE CITY OF MEMPHIS, et al.
Court:TCA
Attorneys:
Leo Bearman, Jr.; Elizabeth E. Chance; Dedrick Brittenum, Jr.; Thomas
C. Quinlen, Memphis, For Appellant, Shelby County, Tennessee Allan
J. Wade, Memphis, For Appellant, City of Memphis J. N. Raines; Oscar
C. Carr, III; Jonathan C. Hancock, Memphis, For Appellant, Hoops, L.P.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore,
Solicitor General; Janet M. Kleinfelter, Nashville, for Appellant,
State of Tennessee Lyle Reid; John Knox Walkup; Thomas R. Dyer;
Stephen J. Zralek, Memphis, for Amicus Curiae, Memphis Chamber of
Commerce Duncan E. Ragsdale, Memphis, For Appellees
Judge: CRAWFORD
First Paragraph:
Two taxpayers sued the county, city, and a professional basketball
franchise seeking a declaratory judgment that the actions of the city
and county to procure and provide financing for a new arena and the
agreements made in connection therewith, all in an effort to relocate
the franchise to Memphis, violates art. II, S 29 of the Tennessee
Constitution because it constitutes a giving or lending of credit of
the city and county to a private entity and that the proposed
expenditures are not for a public purpose. Defendants filed a motion,
pursuant to Tenn.R.Civ.P. 12.02 (6), to dismiss the complaint for
failure to state a claim or cause of action upon which relief can be
granted and also contested standing of the plaintiffs to maintain the
action. The trial court denied the motion to dismiss and declared
that the expenditures financed by the city and county were not for a
public purpose and that the expenditures were in violation of art. II,
S 29 of the Tennessee Constitution requiring a referendum election.
The trial court enjoined defendants from proceeding further with the
plans and agreements for the relocation and the proposed furnishing of
expenditures in connection therewith. Defendants have appealed. We
affirm in part, reverse and remand.
http://www.tba.org/tba_files/TCA/ragsdaledun.wpd
WILLIAM H. ROBERTS, M.D., et al. v. S. LANE BICKNELL, M.D., et al.
Court:TCA
Attorneys:
Oscar C. Carr, III, Memphis, For Appellant, Rosemary Roberts
Thomas H. Rainey, Marty R. Phillips; Jackson, For Appellees, S. Lane
Bicknell, M.D., Harvey C. Harmon, M.D., Roy Appleton, M.D. and The
Jackson Clinic Professional Association
Judge: CRAWFORD
First Paragraph:
In this medical malpractice case, patient and wife sued physicians and
their professional association for damages resulting from defendants'
negligence, deviation from applicable standard of care, and lack of
informed consent. The trial court granted defendants a partial
summary judgment for all claims concerning incidents that occurred
more than one year prior to the date suit was filed, as barred by the
statute of limitations. Subsequently, the trial court granted summary
judgment on the merits as to all remaining claims. Plaintiff appeals.
We affirm.
http://www.tba.org/tba_files/TCA/robertswil.wpd
VANN R. STIFFLER, et al. v. THE KROGER COMPANY
Court:TCA
Attorneys:
Betty Ann Milligan and Mildred L. Sabbatini, Memphis, Tennessee, for
the appellant, The Kroger Company.
R. Linley Richter, Jr., Memphis, Tennessee, for the appellees, Vann R.
Stiffler and Donald Stiffler.
Judge: FARMER
First Paragraph:
This is a premise liability action arising from an incident wherein
Mrs. Stiffler was struck in the back by shopping carts, knocked to the
floor, and sustained injuries as a result of the fall. At trial, the
jury awarded Mrs. Stiffler $75,000 and awarded $5,000 to Mr. Stiffler
on his loss of consortium claim. Kroger filed a motion to set aside
the verdict, for a new trial, or, alternatively, for remittitur. The
trial court denied Kroger's motion, and this appeal ensued. We
affirm.
http://www.tba.org/tba_files/TCA/stifflervannr.wpd
THE UNIVERSITY OF TENNESSEE OF CHATTANOOGA v. KAREN FARROW and HARRIET
WHITE, CONSOLIDATED WITH SARAH SHARP v. THE UNIVERSITY OF TENNESSEE
and JOYCE MERRYMAN v. THE UNIVERSITY OF TENNESSEE
Court:TCA
Attorneys:
Samuel W. Brown and Arthur F. Knight, III, Knoxville, Tennessee, for
Appellants, Sarah Sharp and Joyce Merryman.
Pamela R. O'Dwyer and Randall D. Larramore, Chattanooga, Tennessee,
for Appellees, Karen Farrow and Harriet White.
Alan M. Parker, Deputy General Counsel, The University of Tennessee,
Knoxville, Tennessee, for Appellee The University of Tennessee.
Judge: FRANKS
First Paragraph:
Rule 9, T.R.A.P. Appeals granted on the issue of whether the parties
are entitled to a jury in claims brought under the Tennessee Human
Rights Act, Tennessee Code Annotated S4-21-101 et seq. We hold the
parties have the right to a jury trial.
Tenn. R. App. R.9 Appeals; Judgments of the Chancery Court of Knox
County are reversed, and the Judgment of the Chancery Court of
Hamilton County is affirmed.
http://www.tba.org/tba_files/TCA/unoftn.wpdMICHAEL CARLTON BAILEY v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee, for appellant, Michael
Carlton Bailey.
Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan,
Assistant Attorney General; Dan Alsobrooks, District Attorney General,
for appellee, State of Tennessee.
Judge: SMITH
First Paragraph:
The appellant, Michael Carlton Bailey, appeals from the trial court's
denial of his petition for post- conviction relief. On appeal, the
appellant challenges the trial court's determination that (1) he
received the effective assistance of counsel, and (2) that he was not
denied due process by the alleged violation of Tennessee Rule of
Evidence 615 by two State witnesses.
http://www.tba.org/tba_files/TCCA/baileymichael.wpd
STATE OF TENNESSEE v. WILLIAM BUTLER BOLLING
Court:TCCA
Attorneys:
Richard Alan Spivey, Kingsport, Tennessee, for the Appellant, William
Butler Bolling.
Paul G. Summers, Attorney General & Reporter; Angele M. Gregory,
Assistant Attorney General; H. Greeley Welles, Jr., District Attorney
General; Robert Montgomery, Assistant District Attorney General, for
the Appellant, State of Tennessee.
Judge: WITT
First Paragraph:
William Butler Bolling appeals from the Sullivan County Criminal
Court's determination that he serve his plea bargained, effective
two-year sentence for gambling crimes in the Department of Correction.
He claims he should have received some form of alternative
sentencing, preferably probation, for his felony conviction. Because
Bolling has failed to demonstrate the error of the trial court's
determination, we affirm.
http://www.tba.org/tba_files/TCCA/bollingwb.wpd
STATE OF TENNESSEE v. ANTHONY CARPENTER
Court:TCCA
Attorneys:
Tony N. Brayton (on appeal), and Marvin E. Ballin (at trial), Memphis,
Tennessee, for the Appellant, Anthony Carpenter.
Paul G. Summers, Attorney General and Reporter; Laura E. McMullen,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Phillip Gerald Harris, Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant, Anthony Carpenter, was convicted by a jury of second
degree murder. In this appeal as of right, he asserts that the
evidence was insufficient to support his conviction and that the trial
court erred by sentencing him to twenty-three years incarceration. We
find no error; thus, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/carpentera.wpd
STATE OF TENNESSEE v. JACQUELINE HURT
Court:TCCA
Attorneys:
Robert Little, Timothy Williams, Kendall Reeves, Mike Gatlin,
attorneys for appellant, Jacqueline Hurt.
Paul G. Summers, State Attorney General, Kim R. Helper, Assistant
Attorney General, William L. Gibbons, District Attorney General, Karen
Cook, Assistant District Attorney General, attorneys for the appellee,
State of Tennessee.
Judge: CLARK
First Paragraph:
Pursuant to a plea agreement, the appellant, Jacqueline Hurt, entered
open guilty pleas to two counts of attempted first degree murder, one
count of especially aggravated robbery, and one count of especially
aggravated kidnaping, all Class A felonies. She received an effective
sentence of seventy- five years. The appellant contends that the
trial court imposed an excessive sentence because it erred in applying
one enhancement factor and because it imposed consecutive sentences.
We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/hurtj.wpd
MICHAEL SHANE HYDER v. ALLEN BARGERY, WARDEN
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General, J. Ross Dyer, Assistant Attorney
General, Elizabeth T. Rice, District Attorney General, James Walter
Freeland, Jr., Assistant District Attorney General, for the Appellant,
Allen Bargery, Warden.
John E. Appman, Attorney for Appellee, Michael Shane Hyder.
Judge: CLARK
First Paragraph:
The state has appealed from the judgment of the Circuit Court of
Hardeman County granting the petitioner habeas corpus relief and
finding that his two consecutive three-year sentences had expired.
The state asserts that the sentences have not expired and that the
petitioner is not entitled to be released from prison. Because the
state has not filed an adequate record, we affirm the judgment of the
trial court.
http://www.tba.org/tba_files/TCCA/hyderms.wpd
STATE OF TENNESSEE v. MILA LOVE
Court:TCCA
Attorneys:
Bill Anderson, Jr., Memphis, Tennessee (on appeal) and Michael W.
Whitaker, Covington, Tennessee (at trial and on appeal), for the
appellant, Mila Love.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman,
Assistant Attorney General; Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals her convictions for first degree felony murder
and alleges four errors for our review: (1) insufficient evidence;
(2) failing to take judicial notice of the definition of the word
"gank;" (3) failing to determine the order of the verdicts; and (4)
failing to instruct on the lesser- included offenses of felony murder.
After review, we hold that sufficient evidence exists to support the
defendant's convictions for first degree felony murder and that the
trial court did not err in declining to take judicial notice of the
definition of the word "gank." We further hold that the trial court
did not err in failing to determine the order of the verdicts and
there was no implied acquittal of the felony murder convictions.
Finally, we hold, pursuant to the recent Tennessee Supreme Court
opinion of State v. Ely, ___ S.W.3d ___ (Tenn. 2001), that the
offense of first degree felony murder does have lesser-included
offenses of second degree murder, reckless homicide, criminally
negligent homicide, and facilitation of felony murder. Therefore,
because the trial court failed to instruct on the lesser-included
offense of facilitation of felony murder, we reverse the defendant's
convictions and remand for a new trial.
http://www.tba.org/tba_files/TCCA/lovem.wpd
KEVIN TAYLOR v. STATE OF TENNESSEE
Court:TCCA
Attorneys:
William Griffin, Nashville, Tennessee, at trial and sentencing; C.
LeAnn Smith, Nashville, Tennessee, on post-conviction for appellant,
Kevin Taylor.
Paul G. Summers, Attorney General & Reporter; David H. Findley,
Assistant Attorney General; Victor S. Johnson, District Attorney
General; and Kimberly Haas, Assistant District Attorney, for appellee,
State of Tennessee.
Judge: SMITH
First Paragraph:
A jury found the petitioner guilty of felony murder and attempted
especially aggravated robbery. For these offenses he received
sentences of life and ten years respectively, which were set to run
concurrently. The petitioner unsuccessfully pursued a direct appeal.
See State v. Kevin Taylor, No. 01C01-9707-CR-00263, 1998 WL 849324 at
*1 (Tenn. Crim. App. at Nashville, Dec. 9, 1998). Following his
unsuccessful direct appeal, the petitioner then filed for
post-conviction relief. He was subsequently appointed counsel, and
this attorney filed a "Supplemental Petition for Post-Conviction
Relief" alleging ineffective assistance of counsel and the deprivation
of the petitioner's right to due process. Following an evidentiary
hearing on these matters, the trial court found that the petition did
not merit relief. The petitioner now appeals this denial maintaining
that his trial counsel provided ineffective assistance by failing to
subpoena and introduce alleged telephone records; to interview and/or
call certain potential witnesses; and to properly investigate and
cross-examine two State witnesses. After reviewing the record and
applicable case law, we find that these claims lack merit and,
therefore, affirm the trial court's judgment.
http://www.tba.org/tba_files/TCCA/taylorkevin.wpd
STATE OF TENNESSEE v. TIMOTHY TILLERY
Court:TCCA
Attorneys:
Mack Garner, Maryville, Tennessee, for the Appellant, Timothy Tillery.
Paul G. Summers, Attorney General and Reporter; Angele M. Gregory,
Assistant Attorney General; Michael L. Flynn, District Attorney
General; and Edward P. Bailey, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.
Judge: WEDEMEYER
First Paragraph:
The Defendant, Timothy Tillery, appeals as of right from the
revocation of his probation. On appeal, he argues (1) that the trial
court erred by refusing to dismiss the probation revocation proceeding
because his right to a speedy trial was violated and (2) that the
trial court erred by revoking his probation. We find no error; thus,
we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/tillery.wpd
STATE OF TENNESSEE v. DANIEL WADE WILSON
Court:TCCA
Attorneys:
Stephen M. Wallace, District Public Defender; William A. Kennedy,
Assistant Public Defender, for the appellant, Daniel Wade Wilson.
Paul G. Summers, Attorney General & Reporter; Patricia C. Kussmann,
Assistant Attorney General; H. Greeley Wells, Jr., District Attorney
General; Joseph E. Perrin, Assistant District Attorney; Barry P.
Staubus, Assistant District Attorney General, for the appellee, State
of Tennessee.
Judge: WOODALL
First Paragraph:
The Defendant, Daniel Wade Wilson, appeals as of right his convictions
for second degree murder, first degree felony murder and especially
aggravated robbery in the Sullivan County Criminal Court. The trial
court merged the second degree murder conviction into the felony
murder conviction, and the jury sentenced the Defendant to life
imprisonment for the felony murder. The trial court sentenced the
Defendant to twenty-three (23) years for the especially aggravated
robbery conviction. The sentences were ordered to run consecutively.
The Defendant raises the following four issues in this appeal: 1)
whether the trial court erred in failing to charge all applicable
lesser-included offenses; 2) whether the trial court erred in failing
to instruct the jury on the natural and probable consequences rule; 3)
whether the evidence was sufficient to sustain Defendant's convictions
for first degree felony murder and especially aggravated robbery; and
4) whether the trial court erred in sentencing the Defendant. The
judgment of the trial court is hereby affirmed in part and reversed in
part, and remanded to the trial court for a new trial on the felony
murder charge in Count II and the especially aggravated robbery charge
in Count III of the indictment. The case is further remanded for
sentencing on the second degree murder conviction in Count I of the
indictment.
http://www.tba.org/tba_files/TCCA/wilsondw.wpd
STATE OF TENNESSEE v. RICHARD WOOLS
Court:TCCA
Attorneys:
David M. Livingston, Brownsville, Tennessee, for the appellant,
Richard Wools.
Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Clayburn L. Peeples, District Attorney
General; and Edward L. Hardister, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant appeals his conviction at a bench trial for the offense of
cruelty to animals. The trial court sentenced him to eleven months
and twenty-nine days with all but ten days suspended. He raises the
following issues for our review: (1) whether the evidence was
sufficient to support the conviction; (2) whether the trial court
erroneously admitted evidence outside the facts alleged in the
charging instrument; (3) whether the trial court erroneously allowed
three witnesses to give opinion testimony; and (4) whether the trial
court erred in failing to suspend the entire sentence. We affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/woolsr.wpd

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